9911796707
TMI Blog2024 (3) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Appeals), New Custom House, New Delhi upholding the Order in original dated 30.12.2016 passed by the Joint Commissioner. The operative part of the order-in-original is as follows: ORDER (1) I deny the benefit of DEPB license No.- 0310687088 dated 20.03.2012 and confirm the Customs duty amounting to Rs. 3,05,997/- (Rupees Three Lakh Five Thousand Nine Hundred Ninety Seven) under section 28(1) of the Customs Act, 1962 for import made under bill of entry No.- 6676015 dated 28.04.2012 by M/s. Whirlpool of India Ltd, and interest, at appropriate rate, thereof under section 28AA of the said Act. (2) I order for confiscation of the goods valued at Rs. 11,71,096/- imported under bill of entry No. 6676015 dated 28.04.2012 under Section 113 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import goods claiming exemption from the customs duty (and debiting the amount equal to the duty from the scrip instead). Alternatively, they can sell these scrips in the market. In this case, M/s. Super Trading Co. to whom the scrips were issued sold them to the appellant for a consideration and the appellant used them to clear goods. 4. After the goods were cleared, it was discovered during an investigation that the Shipping Bills which M/s. Super Trading Co. produced to obtain the scrip were forged. Accordingly, DGFT cancelled the scrips ab initio. Thereafter, Customs issued a Show Cause Notice SCN dated 3.9.2015 to the appellant, to M/s. Super Trading Co. and to its proprietor Shri Rajat Gulati others which culminated in the order-in-o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... everything and once the ab initio cancellation of the DEPB scrip by the DGFT is not challenged, the consequences follow and the appellant cannot get an exemption de hors the scrip which it used to clear the goods without paying duty. Once the scrip itself is held is cancelled ab initio, neither M/s. Super Trading Co. to whom the scrip was issued nor the appellant who bought it can enjoy on the scrip obtained by fraud and based on forged Shipping Bills. 7. We have considered the submissions on both sides. Before examining the merits of the case, we proceed to examine the question of limitation because it is undisputed that the demand was made under section 28 invoking extended period of limitation. No part of the demand falls within the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Act. And whereas the exporter has fraudulently obtained the impugned DEPB authorisation on the basis of forged documents by resorting to mis-statement and mis-declaration, hence in the instant case the extended period of five years is invocable under the provisions of proviso to erstwhile Section 28 (1) of the Customs Act, 1962 for demanding the duty and interest thereof." 9. The submissions of the appellant in its reply to the SCN on the question of limitation was as follows: 6. Extended period of limitation cannot be invoked since no malafide intention of the Noticee 6.1. The impugned notice has been served on the Noticee by invoking the extended period of limitation as mentioned in section 28 of the Customs Act. However, the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice on the person chargeable with the duty..." "Explanation 1: For the purpose of this section, "relevant date" means- (i) In a case where duty is not levied or not paid or short-levied or short-paid, or interest is not charged, the date on which the proper officer makes an order for the clearance of the goods; (ii) ................. (iii) ................ (iv) In any other case, the date of payment of duty or interest." 6.4. From the perusal of the abovementioned provisions, it is evident that extended period of five years can be invoked only in the cases of collusion, wilful mis-statement and suppression of facts by the person who is liable to pay the duty i.e. Noticee. Since no such factor exists in the present case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case were alleged, let alone, established against the importer either in the SCN or in the order in original or the impugned order. Therefore, extended period of limitation could not have been invoked in this case and the demand itself is hit by limitation. It cannot therefore be sustained. 13. Since the demand is not sustainable on limitation itself, it is not necessary for us to examine the demand on merits. 14. The demand needs to be set aside along with the consequential order holding the imported goods liable to confiscation and the penalty imposed on the appellant. 15. In view of the above, the appeal is allowed and the impugned order is set aside insofar as it pertains to the appellant herein. [ Order pronounced on 06. 03 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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